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TMI Blog2020 (10) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... he Writ Petition No. 38107 of 2014, whichever is earlier. 2. Brief averments made by the Interim Resolution Professional in the instant Application are described hereunder: A. The Financial Creditor/Andhra Bank had filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor / M/s. Leo Meridian Infrastructure Projects and Hotels Ltd. seeking initiation of Corporate Insolvency Resolution Process (CIRP). The Petition has been admitted vide Order CP (IB) No. 43/7/HDB/2018, dated 09.04.2019 and appointed Mr. Naga Bhushan Bhagawati as Interim Resolution Professional. B. It is averred the Applicant/M/s. Leo Meridian Infrastructure Projects and Hotels Limited is a private entity with its presence in the hotel industry and is having a resort situated at Bommaraspet Village, Shamirpet Mandal, Medchal-Malkajgiri District - 500 078. The Corporate Debtor is currently undergoing the Corporate Insolvency Resolution Process (CIRP) as per the Insolvency and Bankruptcy Code, 2016 in accordance with the Order dated 09.04.2019 issued by this Hon'ble Tribunal. C. The Applicant / Corporate Debtor is registered under the Companies Act, 1956 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reimbursed at the rate of Rs. 0.75 paise per unit on energy charges during the first year of the policy and for the remaining four years, the reimbursement will be given to the extent that the power cost to the Applicant is pegged down to the first year's level, keeping in view the changes in the tariff structure of these four years. The above concession granted to the Applicant is in complete consonance with the IIPP, which in Clause 5.1.11 provides that, "Power cost will be reimbursed at the rate of Rs. 0.75 paise per unit during the first year of the policy and thereafter for the remaining four years, the rate of reimbursement would be so regulated on yearly basis keeping in view the changes in the tariff structure to ensure that the power cost to the industry pegged down to the first year's levels". I. It is averred the above letter also stated the Corporate Debtor shall submit an application to the 3rd Respondent in order to avail the said exemptions and concessions legally attained by the Corporate Debtor by being designated as an MTP by the Respondents. It is also averred that the Corporate Debtor has already submitted representations to the Respondents requesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period". O. It is averred the inaction and inordinate delay on part of the Respondents is arbitrary in nature and violative of the rights of the Applicant, specifically the fundamental right of the Applicant under Article 14 of the Constitution of India, 1950 to be treated equally, fairly and non-arbitrarily in relation to its status as an MTP and its consequent benefits and concessions being granted to the Applicant atleast at par with other MTP status entities. The requirement of the Applicant to be treated in a non-arbitrary, equal and fair manner per Article 14 of the Constitution of India, 1950 is well established by the Hon'ble Supreme Court in E.P.Royappa vs. State of Tamil Nadu & Anr. 1974 AIR 555, wherein the Court held that: "Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be first a representation of an existing fact distinct from a mere promise made by one party to another, secondly, that the other party believing it must have been induced to act on the faith of it; and thirdly, that he must have so acted to his detriment". In the instant case, the 1st Respondent had issued the Order wherein the Applicant Project was granted the status of an MTP, and the consequent exemptions and concessions from that status, including the Reimbursements, were conferred to the Applicant. T. It is averred in pursuance to the Order of the 1st Respondent, the Applicant had been declared as an MTP, in furtherance of which it has been paying the power cost according to the tariff rates and in the manner as provided under the IIPP. However, the Applicant has till date neither been granted the exemptions and concessions that it is liable to get in respect of being conferred the status of a MTP, nor has it received reimbursement that accrues to it in respect of payment of the power cost. Hence this application to grant necessary reliefs in favour of Applicant. 3. Brief averments made in the Counter filed by the Respondent No. 3 / Southern Power Distribution Company of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State Government. Provided that no such direction of the State Government shall be operative if the payment is not made in accordance with the provisions contained in this section and the tariff fixed by the State Commission shall be applicable from the date of issue of orders by the Commission in this regard. f. It is averred as per Section 12(3) of A.P.Electricity Reforms Act, 1998, the State Government is entitled to issue policy directions concerning the Subsidies to be allowed for supply of Electricity to any class or classes of persons or in respect of any area in addition to the subsidies permitted by the Commission while regulating and approving the tariff structure, provided the State Government shall contribute the amount to compensate such concerned body or unit affected by the grant of the subsidies by the State Government to the extent of the subsidies granted. The Commission shall determine the amount, the terms and conditions and time frame on which such amounts are to be paid by the State Government. g. It is averred the Applicant can claim the reimbursable amount @ 0.75 paisa per unit on the energy charges as per G.O.Ms. No. 10, dated 25.02.2009 from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should therefore not be taken up for adjudication by the Adjudicating Authority or else it would amount to entering into the realm of the Hon'ble High Court of Telangana. m. It is averred that all the allegations made by the Applicant that are not specifically dealt with herein are denied, in toto, and prayed to dismiss IA 486 of 2019 with costs. 4. Heard the Counsel for the Resolution Professional and also the Counsel for Respondents. The Applicant is seeking direction to the Respondents to keep the payment of the electricity bills of the Corporate Debtor in abeyance till either (i) at the end of the moratorium period of the Corporate Debtor Insolvency Proceedings; or (ii) final disposal of the Writ Petition bearing No. 38107 of 2014, whichever is earlier. The main contention of Learned Counsel for Applicant / Corporate Debtor represented by Resolution Professional that Applicant is undergoing Corporate Insolvency Resolution Process. The contention of learned counsel, the then Government of State of Andhra Pradesh had notified Industrial Investment Promotion Policy 2005-2010 ("IIPP") to encourage tourism and to provide employment to the rural population. 5. Learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the third respondent by State Government to extend the concession to the Corporate Debtor. 9. It is not in dispute the Applicant / Corporate Debtor already filed writ petition in the Hon'ble High Court bearing Writ Petition No. 38107/2014. Thus already the Corporate Debtor moved the Hon'ble High Court even before CIRP started against Corporate Debtor. Having filed writ petition in the Hon'ble High Court and when matter is sub-judice, it is not open to the Applicant / Corporate Debtor to move the Tribunal again on the same issue. On this ground, the present applicable is liable to be dismissed. 10. It is also true that the benefit if any given to the Corporate Debtor by the Government then suitable deposit to be made with the distribution company / R3 by the State Government concerned for extending the benefit. Till date, no such deposit is made with the Distribution Company. Therefore, the Adjudicating Authority cannot give any direction to the 3rd Respondent to extend a concession to the Applicant / Corporate Debtor. 11. The issue whether the Applicant / Corporate Debtor is entitled for the concessions as per the policy and as per the G.O. referred to is a matter y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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